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Category Archives: Ozarks economy

How to count lots when amending subdivision covenants. You may be surprised.


When an HOA looks at revising its subdivision covenants (sometimes called CCRs, declaration, restrictions, restrictive covenants, master deed, or indenture), the board and its attorney generally find a paragraph toward the end of the covenants that requires that the owners of a majority of lots–or units, for a condominium–must approve the amendment for it to be effective. The required majority could be the votes of the owners of more than half, two thirds or three fourths of the total number of lots, or in rare cases, all the owners of all lots. In some instances, certain types of amendments may also require the consent of the developer or a lender.

However, determining what type of majority is required and how the votes are recorded is not always simple. In Wagner v. Nolan, the Missouri Court of Appeals for the Western District of Missouri held on April 19, 2022, that a document terminating the restrictive covenants was not signed by the owners of a majority of the lots, even though the owners of 9 of the 17 lots had signed. The wrinkle was that Lot 2 as originally platted had been divided into four lots, and the 9 votes in favor included Lots 2A, 2B, 2C and 2D, all carved out of the original Lot 2. Nothing in the subdivision restrictions addressed whether additional lots would be given full weight in voting, so the court looked at the language in the recorded subdivision covenants, which stated that the the subdivision consisted of Lots 1 through 14. With Lot 2 being allocated only one vote, rather than four, the tally was 6 in favor, 8 against, so the amendment to terminate the restrictions failed.

The issue of the treatment of lots that have been created through replatting or combined is also important for allocating common expenses. Subdivision covenants typically do not address these situations, and HOAs are very inconsistent in counting votes or allocating expenses after new lots are added or old lots are combined.

When an owner divides a lot, creating new lots, well-drafted subdivision covenants will require that each new lot pay a full share and have a full vote.

If an owner of three lots combines them, that owner often expects to pay the same share of common expenses as the owner of a single lot as originally platted, and is willing to give up two votes to achieve that goal, even though this maneuver shifts a share of the total expense burden onto other owners. If there are 10 original lots, and each owner pays 10% of the total HOA expenses, when three of the original lots are combined, the new total is eight lots, which could result in each owner being now responsible for 12.5% of the total. This result is unfair to the remaining owners. In the case Reed v. Sunset Cove Condominium Owners Association, the Southern District Court of Appeals affirmed a judgment holding that the combination of lots in the condominium form of ownership would not reduce the share of expenses of the combined lots.

Missouri Realtors’ form contract invites trouble


When real estate purchase contracts do not contain an accurate legal description of the real estate being purchased, there is a substantial risk that the wrong real estate will be conveyed. This situation is usually not present when the transaction involves platted subdivision lots–though it can be a problem if a portion of the lot has been sold by the seller to another party. But with property that is described by other methods than lot numbers, the risk of selling the wrong property is magnified. This problem is not theoretical. I have seen it frequently and it leads to lawsuits, expense and disappointment.

The contract forms that I see that are used by many Missouri Realtors have a checkbox to indicate that the legal description is attached, followed by these words: If no legal description is attached, then legal description on Seller’s vesting deed(s) to govern.

The Realtor, seller and buyer expect the title company that prepares the deed to come up with the correct legal description. Guided by the contract language, the title company looks at the deed or deeds by which the seller obtained real estate. The title company may start with a property address shown on the purchase contract. The title company finds the seller’s vesting deed and uses that legal description to produce a title insurance commitment. In preparing the title insurance commitment, the title company will most likely find whether the seller has previously conveyed some of the property described in the seller’s vesting deed.

But what if the seller’s vesting deed described three parcels, but the seller didn’t intend to sell all three? Or what if the seller was only expecting to sell a portion of his acreage? How would the title company know?

In two recent instances that I know about, nobody checked the closing documents, the seller signed an affidavit stating that the legal description to be used in the deed to the buyer is correct, and the deal closed. In November, the seller tries to pay taxes on his remaining property and finds that it is “owned” by the buyer. It is conceivable that the buyer didn’t know exactly what he was buying, so he refuses to convey back the extra lot. In one case I had, the buyer died a few weeks after the closing, and his heirs didn’t have any direct evidence of his intent.

The authority of a real estate agent to present real estate for sale is based on a broker signing a listing agreement. If the listing agreement doesn’t specifically identify the real estate that the broker is authorized to market, the broker’s authority is not well-defined. The seeds of a dispute have been planted.

My advice:

If you are a seller, do not sign a listing agreement unless a legal description of your property is attached and truly describes what you intend to sell.

If you are a real estate broker, do not accept a listing agreement without a legal description that you have discussed with the seller and affirmed to be correct by examination of county assessor records, review of the seller’s title insurance policy, and verification that there have been no other conveyances by the seller.

If you are a buyer, do not sign a purchase contract without the legal description attached.

Your right to remain silent can be important, regardless of what your spouse says


A Missouri appellate court refused to set aside the conviction of murderer, sentenced to life without parole, who claimed that his confession was not voluntary, but coerced by the police.

A part of the opinion contains a transcript of a phone conversation between the accused suspect, after he had been arrested, and his wife, who thought the lawyer’s advice wasn’t worth the money they paid:

[Defendant]: I told them, I said, I want to cooperate and say everything I think I
know, you know, but this lawyer told me not to say anything ….
[Wife]: Listen to me, please listen to me. … I feel as though that $100 that was spent
today on [attorney] was nothing but a big waste of money.
[Defendant]: Right.

[Defendant]: Listen, honey, listen, I just wanted to make sure you are home safe, OK?
I was so worried about that, you know? Linda I am so sorry. … Did you [ever]
get ahold of that lawyer?
[Wife]: No, Todd, look. … This sh*t’s all over the news. …
[Defendant]: Is my name on the news?
[Wife]: I’m gonna assume so because people [are] blowing my phone up.

[Defendant]: Listen, Linda. I told that cop I want to cooperate and say everything I
think I know, you know, but I –
[Wife]: Todd, listen to me please.
[Defendant]: Yes.
[Wife]: I beg you, with everything that is within me, I love you, please find a nice
person there and just try to explain things, please.
[Defendant]: Is that what you think I need to do?
[Wife]: Yes, Todd. Please, let’s get this nightmare behind us, please.
[Defendant]: That detective told me I could talk to him and call him anytime if I
wanted to talk.

Todd gave the detective a detailed account of the murder and disposition of the body. The trial court refused the defense attorney’s motion to suppress the confession. The transcript of the call suggests that the confession was voluntary.

Missouri judges have discretion in creating private road maintenance plans


In 2012, the Missouri General Assembly gave circuit court judges the ability to create road maintenance plans over shared private roads under some circumstances, enacting what is now section 228.369 of the Revised Statutes of Missouri. I wrote about the promises of this legislation when it was enacted, pointing out some of its features and limitations. Now we have the first appellate decision concerning this statute, which indicates that judges in trial courts can exercise discretion in:

  • the manner in which assessments for road maintenance are allocated among the property owners who use the road
  • designating which portions of a road are to be maintained by particular classes of property owners.

The case is Stieren v.  Grothaus, which arose in Jefferson County, Missouri, where Sugar Mountain Road ran from a public road a distance of 713 feet to the Caress home. Later, Fordee Ridge Estates subdivision was created, and Sugar Mountain Road was extended another 3,207 feet to provide access to and from the lots in Fordee Ridge Estates.

The judge in the trial court ordered that the Caress property would be responsible only for the 713-foot portion of the road, (which the appellate opinion refers to as the “Entrance and Hill”) while the owners of lots in Fordee Ridge Estates would be responsible for the Entrance and Hill, plus the 3,207 portion of Sugar Mountain Road (referred to as the “Subdivision Road.”). Some Fordee Ridge owners were unhappy with the trial court’s order and appealed, claiming that:

  • the court erred in apportioning the maintenance costs for the Subdivision Road equally among the Fordee Ridge Estates owners, omitting the Caress property owners whose properties were not in the Fordee Ridge Estates subdivision, and
  • the court was without authority to divide Sugar Mountain Road into two sections (the Entrance and Hill section and the Subdivision Road section).

The appellate court pointed out that the language in section 228.369.2 gives the trial court the discretion to apportion the road maintenance costs “commensurate with the use and benefit to the residences benefitted by the access” by various methods, “including, but not limited to equal division, or proportionate to the residential assessed value, or to front footage, or to usage or benefit.” Thus the court’s apparent conclusion that Caress property outside the subdivision did not benefit at all from the Subdivision Road was justified on the basis of evidence of use and availability for use by mail trucks and emergency vehicles.

Even though the use by Fordee Ridge Estates owners was not equal, the appellate court noted that it “was reasonable for the the trial court to find that the very existence of a road providing access confers the same benefit to all properties: access.”

On the issue of whether the trial court was authorized to divide Sugar Mountain Road into to portions for the purpose of allocating the financial responsibility for maintenance, the appellate court looked at the evidence that the Entrance and Hill portion was built and used earlier and that the Caress properties did not use or benefit from the Subdivision Road, built later as an extension of the original Sugar Mountain Road. The appellate court concluded under these facts, “[t]he only way to apportion costs commensurate with these findings was for the trial court to establish a separate assessment for each portion of the road.”

The appellate decision should give trial judges confidence that they can take evidence and essentially force a maintenance contract on those who benefit from a private road that falls under section 228.369, with the method of allocating the costs to be based on the evidence, allowing the judge to divide the private road into sections as necessary under the circumstances.

While section 228.369 is intended to address a very real problem, it puts judges in a position of creating permanent, substantial financial relationships, which is much different from judges determining the extent of liability based on existing contracts or other relationships. Some judges will be comfortable with this expanded role, and others will wonder why the legislature would grant them a power that is in many cases beyond their expertise.

 

 

 

New library facilities are a huge asset to Christian County


I heard some fine music on August 11 at the newly-renovated Ozark branch of the Christian County Library from Kicking Jacksie!

As you can see in the photo, we were in a bright meeting room that is available to the public. The windows overlook the Finley River Park, where a mud-run had just been completed and where on other days and nights you can see barrel racing at the Finley River Saddle Club arena, various amateur athletic events, the county fair and people having picnics or paddling kayaks.

In our public discourse, we glorify entrepreneurship and the for-profit engines that drive our economy. But what I saw Saturday reminds me that the nonprofit sector—including the government—plays a big part in providing some of the best things in our lives, such as parks and libraries, when citizens are willing to tax themselves.

Last December, I was privileged to be asked to provide legal counsel to the board of directors of the Christian County Library District and the capable director Geri Godber and assistant director Katy Pattison.

The Christian County voters had the good sense to vote an increase in the District’s property tax levy by a 2-1 margin in August 2017. A mere twelve months later and the District has delivered an 8,000 sq. ft. branch in Nixa in a former office suite leased (with a purchase option) from Southern Bank and a complete renovation of the original branch in Ozark, adding a children’s reading room.

For both the Nixa and Ozark projects Sapp Design Architects, led by project architect Devon Burke and senior project manager Jim Stufflebeam, provided designs and Nesbitt Construction was the general contractor.  Michael Strong of George K. Baum & Company was the District’s financial consultant, assisting with the issuance of certificates of participation.

I’ve rarely worked on renovation projects with so much cooperation and so few problems. Nor have I worked on many projects where women (Geri, Katy, Devon and most of the District’s board members) made almost all the decisions. Though my role in the District’s projects has been tiny, I’ve rarely been more proud to be associated with a client’s endeavor.

At the Ozark library, you can check out live music and other performances from time to time, and you can also check out a rod and reel and tackle box or cake or muffin pans. And there are lots of books and movies. You can use a computer that may be connected to databases that aren’t available on Google and get help from a trained librarian. There’s a room full of local history materials. Separate spaces for little kids, tween and teens, with furniture and books to fit them, will help them enjoy using the library.

Getting back to the music–which is linked to books–Jack Bowden of Kicking Jacksie! is a teacher in Hermitage who formerly entertained at Silver Dollar City, where he hooked up with drummer Andy Holloway and bassist Shannon Thomason.

Jack is a participant in Wild Bob’s Musical Book Club. This book club publishes a list of books for upcoming months. Songwriters write a song related to or inspired by the book of the month and congregate at Lindberg’s on Commercial Street once a month to perform the songs that each has written. Literature and music fuel our spirits and imaginations, so that we can go on working. For the performance at the Ozark library, the two songs inspired by Where the Wild Things Are were big hits for all ages.

Everywhere I go, libraries are popular. They offer many things besides quiet spaces, including spaces with pleasant noise, helpful librarians, cake pans and fishing equipment.

One big difference between searching for information at a library and on the internet is that the internet is driven by mechanisms that obtain information from you and select information to give to you, including advertisements, based on what the advertising clients of Google and Facebook want you to see. Libraries aren’t like that.

Christian County has library facilities to be proud of and dedicated board members and employees. The 20 cent per thousand levy provides knowledge and entertainment. Even in an off-year election, Christian County voters turned out and did themselves a huge favor. More facilities are planned for the west and east ends of Christian County.

Brooks Blevins’s refreshing new book, A History of the Ozarks, Volume 1, The Old Ozarks


Brooks Blevins has given us a fresh and refreshing new look at the early history of the Ozarks in the first volume of A History of the Ozarks, published in July 2018 by the University of Illinois Press. I bought my copy through Amazon.

This history is refreshing because it includes many aspects of Ozarks history that I have learned and forgotten, as well as including lots of things that I never knew.

It is fresh because it does avoids the errors of many histories of the Ozarks. The introduction is essentially an essay to counter the stereotyping of the people of the Ozarks. I highly recommend the book just for this part.

In addition, the book sidesteps many errors of previous histories, rather than:

  • being confined to either the Arkansas Ozarks or the Missouri Ozarks, Blevins covers both and a little of the Oklahoma Ozarks,
  • overlooking the contributions of women in commerce as well as on pioneer homesteads, instead, he tells us about Betty Black’s ferry and Polly Hillhouse’s pioneer farming enterprise,
  • treating Indians as as though they were here and suddenly gone, we learn about the internal divisions among the Osage as they confronted loss of hunting lands, as well as many other groups of Indians who lived in the Ozarks while being pushed westward, eventually to Indian Territory,
  • describing the landscape merely as rugged and rocky with poor soils, we learn that different groups of settlers had different preferences and abilities, which were applied to various types of forest, prairie and bottomlands, and
  • leaving out slavery and the economic contributions of enslaved persons, the earliest substantial industries, such as the Maramec ironworks, depended heavily on involuntary servitude, as did the founders of Springfield

There’s a good balance of cultural history, political history and economic history, leavened with a few tall tales, such as that of Duke, who tamed a herd of elk calves and taught them to pull his wagon, carrying him away from the Ozarks when too many settlers came in.

I’m anxious for the next volume, which takes up with the gathering clouds of the Civil War.

 

A Grandchild’s view from The Backseat of Two Old Folks’ Car


Marshall Hill and his wife Tami and their granddaughter Tinley had a wonderful vacation to the Black Hills and Mount Rushmore. They made this beautiful music video to remember it by:

Libertarian support for federal regulation of dog walkers?


Regulation of providers of local services–barbers, real estate brokers, taxi cabs, etc.–is traditionally a function of state and local governments. Not discerning any great effect on interstate commerce (i. e., no significant campaign contributions), the United States Congress has stayed out of this field.

Many economists and politicians, especially those with a libertarian bent, wonder why a manicurist or a hair braider, needs a license.  Restrictions on entry into an occupation protect the license holders from competition and allow them to raise their prices.

I have read that at the peak 17% of the United States labor force was in trade unions. Now, about the same percentage has occupational or professional licenses, while trade unions have lost their clout and amount to 3% of the labor force. My guess is that those who hold occupational licenses are more likely to vote Republican, while trade union members once gave great power to the Democratic Party.

Tyler Cowen, an affable academic economist with a libertarian outlook, advances the argument in a recent Bloomberg column, that federal regulation of these occupations would be a better alternative than allowing state and local regulation to continue:

My radical proposal is therefore for the federal government to preempt as much occupational licensing as is possible. That’s right, these functions would be taken away from the state and local governments.

Unfortunately, I don’t expect the federal bureaucracy to usher in the reign of Milton Friedman’s Chicago School economics. But the federal regulatory process would likely pay less heed to local special interests, and it would produce a more homogenized and less idiosyncratic body of regulatory law more geared toward the most important cases, such as medicine and child care. The federal government is less likely than many state and local governments to obsess over licensing rules for fortune tellers, florists and athletic trainers.

Though the Commerce Clause was stretched pretty far by the Warren Court in the 1960s, I doubt that the current Supreme Court would allow Congress to regulate dog walkers and hair braiders.
Cowen’s rationale is that federal power may be justified to keep state and local governments from infringing on economic freedoms:
Keep in mind that the alternative to my suggestion is not the status quo but rather a regime where occupational licensing becomes progressively worse at multiple levels of government. The defense of liberty requires changes, and sometimes that means recognizing that small, local governments are infringing upon our rights rather than protecting them.

Book Review: James Fork of the White River, Transformation of an Ozark River

Book Review:  James Fork of the White River, Transformation of an Ozark River

Published by Lens & Pen Press, 4067 Franklin, Springfield MO 65807, $35 (buy both James Fork of the White River and Damming the Osage for $52.50 postpaid), 351 pages.

The evolution of a river in the modern era has many dimensions—geology, politics, cultures, the rise and fall of towns, commerce—and Crystal and Leland Payton have once again used various techniques to capture the modern history of the James River in Southwest Missouri. These techniques involve reproduction of old photographs, maps, and promotional brochures, and lavish new photographs. Combining these graphics with a penetrating verbal narrative, the Paytons have given us what we all want and need to know about the White River’s largest Missouri tributary.

The James originates on the dome of the Springfield Plateau, east of Springfield, near Mansfield. Other streams radiate from this high elevation—the Niangua and the Osage Fork of the Gasconade flowing northward, Bryant Creek and the North Fork of the White flowing southeastward, Swan and Bull creeks flowing south, and the James, initially flowing westward before taking a southward turn at Springfield to eventually reach the White River a few miles above Kimberling City.

Drawing on the pioneering archaeological work of Carl and Eleanor Chapman, whose courses and books about Missouri anthropology and archaeology shaped a couple of generations of students including me, the Paytons summarize what is known about occupants of the valley over the past 12,000 years until the first Anglo-Americans began visiting, then settling, in the past three centuries.

The text, supported by photographs, depicts the valley of the James and its tributaries east of Springfield as an agricultural area, once dominated by general farming, changing to cattle ranching. The authors point out that the substantial Amish communities have continued to raise a variety of crops and livestock, along the tributaries such as Panther Creek and the upper Finley.

Proceeding westward, the James and especially its tributaries that drain Springfield (Pearson, Jordan, Fassnight and Wilson creeks), are urban streams, carrying loads of contaminants. Jordan Creek runs through the heart of downtown Springfield, much of it in underground culverts; the Paytons do a great job of explaining the history and politics of burying Jordan Creek and the progress toward its exhumation and restoration. A interesting tidbit appears in a sidebar, connecting the Jordanaires vocal group that backed Elvis to this stream, a small point that typifies the richness of this book.

In addition, the role of John Woodruff, a Springfield business mogul in the years before World War II, in the development of Springfield and his pursuit of the Arcadian style of tourism is also connected to the James River. In their various books, the Paytons have explicated the attempts of various Ozarks promoters, like Woodruff, to present living and vacationing in the Ozarks as a step back into a perpetual paradise. The idea is both attractive and hollow, and the Paytons use advertising materials and historical photographs to show the efforts made to puff up this ideal, which can never been sustained.

The middle section of the James River Valley, from Springfield to Galena, has a history connected to the Arcadian ideal, some deep hill country culture, and geological curiosities. Here you’ll learn about Browns Spring, Hurley, Jenkins, Ponce de Leon, and Montague.

Galena, with a railroad, became the jumping off point for the classic Ozark float industry that began early in the 20th century. The railroad brought customers from Kansas City, Saint Louis and other Midwestern metropolises. At Galena, they could be placed into long, flat-bottomed boats, and spend several days fishing, camping and drinking, before disembarking at Branson. From there, they and their boats would be loaded on a northbound train to return them to Galena, and eventually take the fishermen to their homes. While there are lots of photos of strings of fish, I suspect that much of what happened on the river stayed on the river.

The lower James, more than the middle section, was caught up in the clamoring for a dam. The story of how the Corps of Engineers wrested dam-building away from private enterprises is well-told in the the Payton’s earlier book Damming the Osage. Similarly, with the boosting of engineering and construction firms, local politicians (especially Dewey Short) and chambers of commerce became convinced that the national interest would be served by a dam and reservoir on the White River, just below the point where the James River emptied in. The machinations resulting in the selection of the Table Rock dam site and the construction of the dam is fascinating and occupies a significant portion of the book.

I’m especially happy that the Paytons are interested in the economic and ecological health of the James River Valley. They have included opinions of several knowledgable people and provided their own thoughtful synthesis.

A short final section is entitled Guardians of Water Quality, and describes the good work of several organizations and individuals who are dedicated to monitoring, protecting and improving the water of this compromised system. The organizations mentioned are the James River Basin Foundation, Ozarks Water Watch, Watershed Committee off the Ozarks, and the Ozarks Environmental and Water Resources Institute at Missouri State University. I have worked with all these organizations, and believe that the work of each of them in public education will be helped by the publication of the James Fork of the White River.

Missouri’s Sunshine Law overrides confidentiality clause in settlement agreement and advice of counsel


On advice of its attorney, the Robinwood South Community Improvement District refused to provide a copy of a settlement agreement to John P. Strake, a member of the public who requested it.  Strake sued and filed a motion for summary judgment, stating that there was no fact question regarding whether the settlement agreement (relating to a personal injury suit) was a public record; Strake also wanted the imposition of a civil penalty and the recovery of his costs and attorney fees.

On November 10, 2015, a unanimous Missouri Supreme Court in Strake v Robinwood West Community Improvement District held that the District’s reliance on its attorney’s advice to not disclose the settlement agreement did not shield the District from being held liable for knowing and purposeful violations of the Sunshine Law.

The trial judge in St. Louis County ordered the District to provide a copy of the settlement agreement. But the trial judge also entered a judgment in favor of the District, denying the civil penalty, attorney fees and costs that were sought by Strake for the District’s knowing and purposeful violation of the Sunshine Law. The trial judge’s order did not explain why exactly she declined to impose the penalty and award costs and attorney fees, noting only that the District “was relying on the advice of counsel to avoid a lawsuit for breach of contract.”

When a city or other unit of local government enters into a settlement agreement to end a lawsuit,  officials often don’t want to encourage additional claims by disclosing how much was paid to make the plaintiff go away. Most settlement agreements contain a confidentiality clause, which may contain penalties for disclosure of the settlement terms, unless ordered by a court before the settlement is final.

Private corporations are no different, but governmental bodies in Missouri have to follow the Sunshine Law, which is Missouri’s body of statutes that require disclosure of most kinds of public records, as well as requiring that meetings of governmental business be conducted in public meetings. Some kinds of governmental records may properly be closed for a time–such as the details of negotiations to buy or sell real estate or terms of proposed settlement offers in litigation–but these records must eventually become public, unless a court determines that they should remain closed. The Sunshine Law specifies very limited grounds for keeping settlement agreements closed, not allowing courts to conceal the amounts paid by or to the governmental body.

A governmental body that knowingly violates the Sunshine Law may be penalized up to $1,000, plus paying the court costs and attorney fees of the party requesting the records. The penalty is up to $5,000 if the governmental body purposely violates the Sunshine Law, which requires proof that the governmental body had “a conscious design, intent or plan” to violate the law “with awareness of the probable consequences.” The District’s attorney had advised the District that “the most prudent course” was to refuse the request to produce the settlement agreement, while pointing out the statute that required the disclosure of the settlement agreement, apparently fearing that the consequences of breaching the confidentiality clause might be more serious than the consequences of violating the Sunshine Law.

The District’s attorney’s advice provided a basis for the Supreme Court to conclude that the District had actual knowledge of its obligations under the Sunshine Law to give the settlement agreement to Strake and the consequences of not doing so, such that its decision to withhold the settlement agreement was a purposeful violation.

The American Civil Liberties Union provided legal counsel to Strake. Those who criticize the ACLU for many of its activities should recognize that the ACLU’s action in this case was non-partisan and strongly in support in openness in government. The Missouri Press Association also participated in the appeal.

 

 

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